Judge: Barbara M. Scheper, Case: 23STCV06215, Date: 2023-07-11 Tentative Ruling
Case Number: 23STCV06215 Hearing Date: November 8, 2023 Dept: 30
Calendar No.
Dihno, et. al.
vs. Netflix Inc., et. al., Case
No. 23STCV06215
Tentative Ruling
re: Defendant’s Demurrer to First
Amended Complaint
Defendant Netflix, Inc. (Netflix) demurs
to the First Amended Complaint (FAC) of Plaintiffs Aharon Dihno, Fernando
Cortez, Ryan Dihno, and Ian Dihno (collectively, Plaintiffs). The demurrer is
sustained.
In reviewing the legal sufficiency of a complaint against a demurrer, a
court will treat the demurrer as admitting all material facts properly pleaded,
but not contentions, deductions, or conclusions of law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank); C & H Foods Co.
v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062.) It is well settled
that a “demurrer lies only for defects appearing on the face of the
complaint[.]” (Stevens v. Superior Court
(1999) 75 Cal.App.4th 594, 601.) “The rules by which the sufficiency of a
complaint is tested against a general demurrer are well settled. We not only
treat the demurrer as admitting all material facts properly pleaded, but also
give the complaint a reasonable interpretation, reading it as a whole and its
parts in their context.” (Guclimane Co.
v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 (internal quotes
omitted).) For purposes of ruling on a demurrer, the complaint must be
construed liberally by drawing reasonable inferences from the facts pleaded. (Wilner v. Sunset Life Ins. Co. (2000) 78
Cal.App.4th 952, 958.)
When ruling on a demurrer, the Court may only consider the complaint’s
allegations or matters which may be judicially noticed. (Blank, supra, 39 Cal.3d at 318.) The Court may not consider any
other extrinsic evidence or judge the credibility of the allegations plead or
the difficulty a plaintiff may have in proving his allegations. (Ion Equip. Corp. v. Nelson (1980) 110
Cal.App.3d 868, 881.) A demurrer is properly sustained only when the complaint,
liberally construed, fails to state facts sufficient to constitute any cause of
action. (Kramer v. Intuit Inc. (2004)
121 Cal.App.4th 574, 578.)
The FAC alleges five causes of
action against Netflix, for: (1) Invasion of Privacy; (2) Negligent Infliction
of Emotional Distress; (3) Intentional Infliction of Emotional Distress; (4)
Violation of the Consumer Legal Remedies Act; and (5) Violation of the
California False Advertising Laws.
Invasion of Privacy (First Cause of Action)
Intrusion upon Seclusion
“A
privacy violation based on the common law tort of intrusion has two elements.
First, the defendant must intentionally intrude into a place, conversation, or
matter as to which the plaintiff has a reasonable expectation of privacy.
Second, the intrusion must occur in a manner highly offensive to a reasonable
person. (Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200,
231, approving and following Rest.2d Torts, § 652B; Miller v. National
Broadcasting Co. (1986) 187 Cal.App.3d 1463, 1482[]; Taus v. Loftus
(2007) 40 Cal.4th 683, 724-725, 731.) These limitations on the right to privacy
are not insignificant. (Miller, supra, at p. 1482.) Nonetheless, the cause of action recognizes a
measure of personal control over the individual’s autonomy, dignity, and
serenity. (Shulman, supra, at p. 231.) The gravamen is the mental anguish
sustained when both conditions of liability exist. (Miller, supra, at
pp. 1484-1485.)” (Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272,
286.)
“As to
the first element of the common law tort, the defendant must have ‘penetrated
some zone of physical or sensory privacy … or obtained unwanted access to data’
by electronic or other covert means, in violation of the law or social norms. (Shulman,
supra, 18 Cal.4th 200, 232; see Id. at pp. 230-231.) In either instance,
the expectation of privacy must be ‘objectively reasonable.’ (Id. at p.
232.) In Sanders v. American Broadcasting Companies (1999) 20 Cal.4th 907…the
court linked the reasonableness of privacy expectations to such factors as (1)
the identity of the intruder, (2) the extent to which other persons had access
to the subject place, and could see or hear the plaintiff, and (3) the means by
which the intrusion occurred. (Id. at p. 923; see Shulman, supra,
18 Cal.4th 200, 233-235.)” (Hernandez, supra, (2009) 47 Cal.4th
272, 286-287.)
“The second common law element
essentially involves a ‘policy’ determination as to whether the alleged
intrusion is ‘highly offensive’ under the particular circumstances. (Taus,
supra, 40 Cal.4th 683, 737.) Relevant factors include the degree and
setting of the intrusion, and the intruder’s motives and objectives. (Shulman,
supra, 18 Cal.4th 200, 236; Miller, supra, 187 Cal.App.3d 1463,
1483-1484.) Even in cases involving the use of photographic and electronic
recording devices, which can raise difficult questions about covert
surveillance, ‘California tort law provides no bright line on
[“offensiveness”]; each case must be taken on its facts.’ (Shulman, supra,
at p. 237; Hernandez, supra, (2009) 47 Cal.4th 272, 287.)
The Court sustained Netflix’s
previous demurrer to this cause of action on the basis that Plaintiffs had
failed to plead any intentional intrusion by Netflix into Plaintiffs’ zone of
privacy. The Intrusion upon Seclusion claim in the FAC is based on the same factual
allegations as the claim in the Complaint, and fails for the same reasons. (FAC
¶¶ 148-153.) Again, Plaintiffs allege that the photograph of their home was
shot by third-party Ashwin Rao, then licensed by Williams Creative Associates
from Shutterstock for Netflix’s use. (FAC ¶¶ 147-151.) Plaintiffs do not allege
that Ashwin Rao was an agent of or employed by Netflix.
False Light
“ ‘False
light is
a species
of invasion of privacy, based on publicity that places
a plaintiff
before the public in a false light that would
be highly offensive
to a reasonable
person, and where the defendant knew
or acted in reckless
disregard as to the falsity of the publicized
matter and the false light in which the plaintiff would
be placed.’ [Citation]. ‘A “false light”
claim, like libel, exposes a person to hatred, contempt, ridicule, or obloquy
and assumes the audience will recognize it as such.’ [Citation.] ‘A “false
light” cause of action is in substance equivalent to a libel claim, and should
meet the same requirements of the libel claim, including proof of malice [where
malice is required for the libel claim].’ [Citation.] ” ” (Jackson v.
Mayweather (2017) 10 Cal.App.5th 1240, 1264.) “Whether defamatory
statements can reasonably be interpreted as referring to plaintiffs is a
question of law for the court.” (Tamkin v. CBS Broadcasting, Inc. (2011)
193 Cal.App.4th 133, 146.)
Under their claim for false light, Plaintiffs
allege that “Netflix publicly disclosed information or material that showed the
Dihnos in a false light, i.e. that the Dihnos were associated with the
copyrighted work Buying Beverly Hills.” (FAC ¶ 157.) This claim fails, first,
because the alleged use of the photograph of Plaintiffs’ home cannot reasonably
be interpreted as referring to Plaintiffs. (FAC ¶ 73.) The allegations also
fail to show that Netflix’s use of the image was “highly offensive to a
reasonable person,”
such that Plaintiffs were exposed “to hatred, contempt, ridicule, or
obloquy.” (C.f. Robinson v. HSBC Bank
USA (N.D. Cal. 2010) 732 F.Supp.2d 976, 986 [use of image of plaintiffs’
home in mortgage advertisement does not “state[] or impl[y] a defamatory
or disparaging fact about plaintiffs or their Property”].)
Negligent Infliction of Emotional Distress (Second Cause
of Action)
“There is no independent tort of
negligent infliction of emotional distress; rather, ‘[t]he tort is negligence,
a cause of action in which a duty to the plaintiff is an essential element.’
[Citation] ‘That duty may be imposed by law, be assumed by the defendant, or
exist by virtue of a special relationship.’ [Citation.]” (Ragland v. U.S.
Bank National Assn. (2012) 209 Cal.App.4th 182, 205.)
“In Potter, the Supreme
Court reaffirmed the lack of an independent tort of negligent infliction of
emotional distress in California. Unless a defendant assumes a duty to the
plaintiff in which the emotional condition of the plaintiff is the object,
recovery for negligent infliction of emotional distress is ordinarily available
only if the defendant breaches some other legal duty which threatens physical
injury, and the emotional distress is proximately caused by that breach of
duty.” (Kerins v. Hartley (1994) 27 Cal.App.4th 1062, 1072.)
Here, Plaintiffs
fail to identify any duty of care that Netflix owed to them. Plaintiffs present
no authority in support of their contentions that Netflix owed them a duty to
investigate the photograph or “to not publish promotional images that create a
false or misleading impression that the content of the image has a relationship
with the copyrighted material it was being used to promote.” (FAC ¶¶ 165-169.)
Intentional Infliction of Emotional Distress (Third Cause
of Action)
“The elements of the tort of
intentional infliction of emotional distress are: (1) extreme and outrageous
conduct by the defendant with the intention of causing, or reckless disregard
of the probability of causing, emotional distress; (2) the plaintiff's
suffering severe or extreme emotional distress; and (3) actual and proximate
causation of the emotional distress by the defendant's outrageous conduct.
Conduct to be outrageous must be so extreme as to exceed all bounds of that
usually tolerated in a civilized community.” (Christensen v. Superior Court (1991)
54 Cal.3d 868, 903.) “However, ‘[i]t is not enough
that the conduct be intentional and outrageous. It must be conduct directed at
the plaintiff, or occur in the presence of a plaintiff of whom the defendant is
aware.’ ” (McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1516.)
Plaintiffs’ IIED claim is based on Netflix’s
alleged publication of the image of their home. (FAC ¶ 177.) As the Court
previously found, Plaintiffs have not alleged any facts showing that Netflix
directed conduct at Plaintiffs or engaged in conduct in Plaintiffs’ presence,
and so the IIED claim fails.
Violations of CLRA and FAL
“A person has standing to bring a claim under
the unfair competition law, the false advertising law, or the CLRA only if she establishes that (1)
she has suffered ‘economic injury’ or ‘damage,’ and (2) this injury or damage
‘was the result of, i.e., caused by,’ the unfair business practice,
false advertising or the CLRA violation ‘that is the gravamen of [her] claim.’ ” (Shaeffer
v. Califia Farms, LLC (2020) 44 Cal.App.5th 1125, 1137.) “There are
innumerable ways in which economic injury from unfair competition may be shown. A plaintiff
may (1) surrender in a transaction more, or acquire in a transaction less, than
he or she otherwise would have; (2) have a present or future property interest
diminished; (3) be deprived of money or property to which he or she has a
cognizable claim; or (4) be required to enter into a transaction, costing money
or property, that would otherwise have been unnecessary.” (Kwikset Corp. v.
Superior Court (2011) 51 Cal.4th 310, 323.)
Under Civil Code section 1780, subdivision
(a), CLRA actions may be brought “only by a consumer ‘who suffers any damage as
a result of the use or employment ’ of a proscribed method, act, or
practice. (Italics added.) ‘This language does not create an automatic award of
statutory damages upon proof of an unlawful act. Relief under the CLRA is
specifically limited to those who suffer damage, making causation a necessary
element of proof.’ [Citation.] Accordingly, ‘plaintiffs in a CLRA action [must]
show not only that a defendant's conduct was deceptive but that the deception
caused them harm.’ ” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th
1350, 1366.)
Here, Plaintiffs have failed to allege that
they suffered an “economic injury” as a result of Netflix’s alleged conduct.
While Plaintiffs allege that they “seek[] and acquire[] by purchase and lease
many goods for personal, family, or household purposes” and “seek[] and acquire[]
copyrighted works such as television shows by purchase or lease” (FAC ¶ 183),
these general allegations fail to show any respect in which Plaintiffs suffered
economic injury as Netflix’s consumers or competitors. Consequently, Plaintiffs
fail to plead standing under the CLRA and FAL.